Bzzliteyr
Army.ca Veteran
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Crantor said:
Okay, you got me there.
However as a leader that has been down that route the first thing I recommend to a solider is to call the 1-800 legal counsel hotline, then I tell them of my experience and how it went with the same caveat you just wrote: individual experiences may vary.
I just hate the fear we instill in everyone that a court martial is the scariest thing out there when it is actually the most just trial you can be a part of.
*edited to add final argument.
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Bzzliteyr said:
I fully agree. When I was threatened with a trumped up charge that was not valid in the least that 1 800 number was a godsend. Having issued cautions and done investigations many many times. I knew they messed up the process totally and that being denied legal aide and not getting read a caution was a little.....messed up to say the least. Within 5 minutes of talking to a surprisingly excited high ranking officer; my mind was set at ease that I had nothing to worry about.
If I messed up in a black and white area I would go summary and take the punishment as expected and deserved. However after being on the fun side of a trumped up attempt to charge I would go court marshal in a second.
Congrats on getting the rank back.
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Bzzliteyr said:
Well, to be fair, yours was very "special" and some more off factors were involved --- ergo the favourable follow-ups to your particular process. Not quite "normal" was yours.
I've done more than a few DIs; I never discuss with my OC, CO or higher. They are aware that I am doing one - that's it. I make them aware when I submit to the JAG reps. Their first hint of details and facts surrounding the DI occurs when they see that file back from the JAG. The particular PO authority reads and decides how/if they wish to proceed. I haven't had one, to date, ask me what I'd like them to do, what I think the outcome should be, what I think a fine or punishment should be upon their determining someone guilty etc.
Once they have that file, my job is simply to march X in to be RDPd (if the PO decides to proceed), march X back in for election, march X back in for CM or ST; and, I haven't had a single one expect anything different of me. I did my job. They did theirs.
A
aesop081
Guest
Stinky Finger said:
http://www.forces.gc.ca/jag/ddcs-dsad/index-eng.asp
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Point to note, and it is probably self evident to most, these numbers are only for use if there is a military nexus to the investigation/arrest etc. If you get arrested by the civilian police, call a civie lawyer or use the civilian legal aid number.
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Just breaking out the Court Martial discussion into Military Admin.
Milnet.ca Staff
Milnet.ca Staff
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I am sure FJAG will be along shortly regarding your first question.
As for your second question, typically when a judge reserves a decision, it means he has not made a decision yet and has set aside a time to deliver the decision at a future date. Often times there are a number of complex legal issues a judge must weigh out (case law, arguments by both, evidence, etc) in order to render a "decision" or a verdict. Because of that, often the judge cannot just pull one out of the air, and thus a decision gets reserved for a future date.
In this case, google is your friend.
http://en.wikipedia.org/wiki/Reserved_decision
As for your second question, typically when a judge reserves a decision, it means he has not made a decision yet and has set aside a time to deliver the decision at a future date. Often times there are a number of complex legal issues a judge must weigh out (case law, arguments by both, evidence, etc) in order to render a "decision" or a verdict. Because of that, often the judge cannot just pull one out of the air, and thus a decision gets reserved for a future date.
In this case, google is your friend.
http://en.wikipedia.org/wiki/Reserved_decision
FJAG
Army.ca Legend
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Hi.
JesseWZ hit the nail on the head re a "reserved decision" so I'll just deal with the first question.
The process for appeals is set out in the National Defence Act as part of the Code of Service Discipline at Division 9 starting at section 228. You'll find that here: http://laws-lois.justice.gc.ca/eng/acts/n-5/page-103.html#h-152
The Court Martial Appeal Court of Canada has a website. The site provides information on the court and its past decisions. One very important element set out there are the CMAC's Rules which you can find here: http://www.cmac-cacm.ca/business/rules/rules_full_e.shtml
In short, the CMAC is a court which has both a designated Chief Justice and an administrator and staff and is co-located with the Federal Court in Ottawa. Besides the CJ there are judges designated from the Federal Court of Appeal and the Courts of Appeal of the various provinces to sit as appeal judges. A panel is generally of three judges although individual judges can hear motions or applications.
The procedures can vary depending on what needs to be addressed and a full explanation would be lengthy and complex, but in its simplest terms and appeal generally runs like this.
1.
JesseWZ hit the nail on the head re a "reserved decision" so I'll just deal with the first question.
The process for appeals is set out in the National Defence Act as part of the Code of Service Discipline at Division 9 starting at section 228. You'll find that here: http://laws-lois.justice.gc.ca/eng/acts/n-5/page-103.html#h-152
The Court Martial Appeal Court of Canada has a website. The site provides information on the court and its past decisions. One very important element set out there are the CMAC's Rules which you can find here: http://www.cmac-cacm.ca/business/rules/rules_full_e.shtml
In short, the CMAC is a court which has both a designated Chief Justice and an administrator and staff and is co-located with the Federal Court in Ottawa. Besides the CJ there are judges designated from the Federal Court of Appeal and the Courts of Appeal of the various provinces to sit as appeal judges. A panel is generally of three judges although individual judges can hear motions or applications.
The procedures can vary depending on what needs to be addressed and a full explanation would be lengthy and complex, but in its simplest terms and appeal generally runs like this.
1.
FJAG
Army.ca Legend
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I note my above post ends with the number 1. When I typed it last night there was a lot more to it. When you first saw my post was there more or did it stop there right from the beginning????
If it was cut off before, I'll try to retype what I had said.
:stars:
If it was cut off before, I'll try to retype what I had said.
:stars:
FJAG
Army.ca Legend
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Meh. My guess is it got cut off so here goes again.
The basic process works like this:
1. The person who feels that the court martial made an error (either as to conviction or as to sentence) will initiate the process by filing a Notice of Appeal which sets out a very brief statement of the error(s) that the court is alleged to have committed.
2. All other parties to the proceedings are called Respondents. Once served with a NofA, the respondents who intend to contest the appeal will file a Notice of Appearance. In addition if a respondent also wishes to challenge the court below, that respondent will also file a cross-appeal.
3. Once served by a NofA and/or cross-appeal the administrator of the Office of the Chief Military Judge (one of whose judges will have conducted the court martial) will file a Memorandum of Particulars and subsequently the Record of the court martial and an Appeal Book. These include, amongst other things, the original charge sheet, any evidence filed in the trial, a transcript of the proceedings, disposition and orders made.
4. The appellant shall file a Memorandum of Fact and Law (also called Factum) which includes a detailed argument as to how the court allegedly erred including direct references to the transcript, evidence filed and any relevant case law.
5. Each respondent shall file a Memorandum of Fact and Law as to their detailed arguments etc.
6. Where a respondent has filed a cross-appeal and set out arguments in support of that, the Appellant may file a Memorandum in Reply.
7. The appellant will file a Request for Hearing and the CMAC Chief Justice shall assign judges to hear the appeal and the administrator shall set a date for hearing.
In general for a run-of-the-mill appeal all of the above takes about nine months.
The hearing of an appeal will generally be a half day or a full day at best. Except in very rare circumstances, there is no new evidence presented before the court. The hearing consists solely of oral presentations by the parties lawyers as to the merits of their case and questions from the bench to the lawyers to seek clarifications.
The following my occur:
1. If the appeal is a weak one the court may choose to render a decision dismissing the appeal after hearing only the appellant. (the sweetest words a respondent's lawyer can hear at an appeal is "We don't need to hear from you Major Bloggins")
2. Again, where the appeal is weak, the court may hear from the respondent and at the end just adjourn for a brief time and then come back and dismiss the appeal from the bench with very short oral reasons.
3. Where the appeal is more complex and/or the court wishes to give detailed reasons for its decisions, the court will "reserve" and will issue a written decision and reasons. Typically this takes one two two months but could be longer.
The above is a typical process. Matters can be much more involved where there are applications for leave to appeal, motions, applications for bail pending appeal, a need to involve the Attorney General's office where there are constitutional issues etc.
Once you've reviewed this as well as the reference material I'd be happy to answer any further questions you might have.
:cheers:
The basic process works like this:
1. The person who feels that the court martial made an error (either as to conviction or as to sentence) will initiate the process by filing a Notice of Appeal which sets out a very brief statement of the error(s) that the court is alleged to have committed.
2. All other parties to the proceedings are called Respondents. Once served with a NofA, the respondents who intend to contest the appeal will file a Notice of Appearance. In addition if a respondent also wishes to challenge the court below, that respondent will also file a cross-appeal.
3. Once served by a NofA and/or cross-appeal the administrator of the Office of the Chief Military Judge (one of whose judges will have conducted the court martial) will file a Memorandum of Particulars and subsequently the Record of the court martial and an Appeal Book. These include, amongst other things, the original charge sheet, any evidence filed in the trial, a transcript of the proceedings, disposition and orders made.
4. The appellant shall file a Memorandum of Fact and Law (also called Factum) which includes a detailed argument as to how the court allegedly erred including direct references to the transcript, evidence filed and any relevant case law.
5. Each respondent shall file a Memorandum of Fact and Law as to their detailed arguments etc.
6. Where a respondent has filed a cross-appeal and set out arguments in support of that, the Appellant may file a Memorandum in Reply.
7. The appellant will file a Request for Hearing and the CMAC Chief Justice shall assign judges to hear the appeal and the administrator shall set a date for hearing.
In general for a run-of-the-mill appeal all of the above takes about nine months.
The hearing of an appeal will generally be a half day or a full day at best. Except in very rare circumstances, there is no new evidence presented before the court. The hearing consists solely of oral presentations by the parties lawyers as to the merits of their case and questions from the bench to the lawyers to seek clarifications.
The following my occur:
1. If the appeal is a weak one the court may choose to render a decision dismissing the appeal after hearing only the appellant. (the sweetest words a respondent's lawyer can hear at an appeal is "We don't need to hear from you Major Bloggins")
2. Again, where the appeal is weak, the court may hear from the respondent and at the end just adjourn for a brief time and then come back and dismiss the appeal from the bench with very short oral reasons.
3. Where the appeal is more complex and/or the court wishes to give detailed reasons for its decisions, the court will "reserve" and will issue a written decision and reasons. Typically this takes one two two months but could be longer.
The above is a typical process. Matters can be much more involved where there are applications for leave to appeal, motions, applications for bail pending appeal, a need to involve the Attorney General's office where there are constitutional issues etc.
Once you've reviewed this as well as the reference material I'd be happy to answer any further questions you might have.
:cheers:
Hi there,
Can anyone answer this question, as I am unable to find a answer to this in any Pubs. Does Court Martials usually have time frames for charging anyone? According to one of Jag Policies, it basically says that Mbrs have the right to go through the process exponentially. But it doesn't say any given time lines.
Can anyone answer this question, as I am unable to find a answer to this in any Pubs. Does Court Martials usually have time frames for charging anyone? According to one of Jag Policies, it basically says that Mbrs have the right to go through the process exponentially. But it doesn't say any given time lines.
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Does anyone have a giant spotlight on it that says "FJAG"? ;D
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I'm sure FJAG will have a more concise answer but I believe there is no formal time frame set down in any legislation. The accused can make application to have the matter thrown out if they feel it has gone on too long but then then the prosecution gets to explain why the matter has taken the time it has. The Judge then decides if the accused's application has merit after considering the reasons and referring to prior case law.
FJAG
Army.ca Legend
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I'm not sure what you mean by "Mbrs have the right to go through the process exponentially". If you use the true meaning of the term then there is no such rule or right. I'd be interested in knowing where you got that from.
To get to your question, however, Luduc has given you a pretty good answer. There are various offences that a person in the military may be charged with. ss 73 to 129 of the NDA list the charges which we most typically consider to be "military offences". A charge under any of these is not subject to any limitation period. Starting at s 286 of the NDA are a number of offences which are triable by civilian courts and these are, as specified, to limitation periods of 6 months from the date that the offence occurred.
s 130 and 132 of the NDA allow the military to try a member for any offence which is an offence under 1) any other Federal Law or 2) any other foreign law if the offence occurred in that foreign country. Many of those laws do have various limitation periods and if the specific offence being charged has such a limitation then it applies equally to a service member at either a summary trial or a court martial. (see s 69(2) of the NDA)
The most important law incorporated by s130 is the Criminal Code of Canada. The criminal code provides for three classes of offences: indictable offences, (the most serious); summary conviction, (the least serious); and hybrid (the ones in between). Where an offence is an indictable one the matter goes generally to a superior court to trial and there is no limitation period. Where an offence is identified as a summary conviction one, it generally goes to a lower level provincial court or magistrate for trial and there is a six month limitation period. Where the offence is identified in the CCC as a hybrid one then the prosecutor can choose whether the matter proceeds as an indictable or a summary conviction process. Until such time that the prosecutor chooses there is no time limit but once the prosecutor chooses summary conviction then the 6 month time limit applies. Note that one should always look very closely at each particular offence to see if it provides for a limitation period other than the standard.
You've probably noticed that this is the usual legal response of -- "it all depends". That's because it does and what you've gotten here is the short and not fully complete answer. If you want to share what offence you are talking about then I might be able to give you a more accurate answer. If you do not want to do that on this board then feel free to pm me.
:cheers:
To get to your question, however, Luduc has given you a pretty good answer. There are various offences that a person in the military may be charged with. ss 73 to 129 of the NDA list the charges which we most typically consider to be "military offences". A charge under any of these is not subject to any limitation period. Starting at s 286 of the NDA are a number of offences which are triable by civilian courts and these are, as specified, to limitation periods of 6 months from the date that the offence occurred.
s 130 and 132 of the NDA allow the military to try a member for any offence which is an offence under 1) any other Federal Law or 2) any other foreign law if the offence occurred in that foreign country. Many of those laws do have various limitation periods and if the specific offence being charged has such a limitation then it applies equally to a service member at either a summary trial or a court martial. (see s 69(2) of the NDA)
The most important law incorporated by s130 is the Criminal Code of Canada. The criminal code provides for three classes of offences: indictable offences, (the most serious); summary conviction, (the least serious); and hybrid (the ones in between). Where an offence is an indictable one the matter goes generally to a superior court to trial and there is no limitation period. Where an offence is identified as a summary conviction one, it generally goes to a lower level provincial court or magistrate for trial and there is a six month limitation period. Where the offence is identified in the CCC as a hybrid one then the prosecutor can choose whether the matter proceeds as an indictable or a summary conviction process. Until such time that the prosecutor chooses there is no time limit but once the prosecutor chooses summary conviction then the 6 month time limit applies. Note that one should always look very closely at each particular offence to see if it provides for a limitation period other than the standard.
You've probably noticed that this is the usual legal response of -- "it all depends". That's because it does and what you've gotten here is the short and not fully complete answer. If you want to share what offence you are talking about then I might be able to give you a more accurate answer. If you do not want to do that on this board then feel free to pm me.
:cheers:
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